STATE of Tennessee v. Leonard J. YOUNG.
Supreme Court of Tennessee, at Jackson.
June 30, 2006.
April 5, 2006 Session.
196 S.W.3d 85
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M. Gregory, Assistant Attorney General; William L. Gibbons, District Attorney General; Amy Weirich and Jennifer Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and E. RILEY ANDERSON, and JANICE M. HOLDER, JJ., joined.
Defendant, Leonard J. Young, was convicted by a jury of first degree premeditated murder, especially aggravated kidnapping, and theft over $1,000 but less than $10,000. See
After the case was docketed in this Court, we entered an order identifying several issues for oral argument.1 We now hold as follows: (1) the evidence was sufficient to establish venue in Shelby County; (2) the death in the immediate family of the original trial judge constituted an “other disability” under
INTRODUCTION
To assist the reader in placing into context the following summary of the State‘s proof in this case, we offer this brief introduction which includes facts that were not adduced until the penalty phase of Defendant‘s trial. In mid-November 1999 in Mississippi, Defendant kidnapped one man and then killed another. Defendant was attempting to evade his apprehension for these crimes when he appeared at Jessie Cochran‘s farm in Hardeman County, Tennessee.
FACTS ADDUCED DURING GUILT PHASE
Jessie Cochran testified that she met Defendant in 1990 and dated him intermittently through 1993. On November 16, 1999, Ms. Cochran returned home to find Defendant in her house, uninvited. Defendant had a sawed-off shotgun but did not threaten her with it. They spoke for about forty-five minutes. Defendant then
After abandoning Ms. Cochran‘s car, Defendant found a Bronco kept in a locked storage building on a farm in Benton County, Mississippi, just south of Ashland, Mississippi. The keys were still in the Bronco, as well as several guns. Defendant took the Bronco and drove to Memphis. The Bronco‘s owner, Mr. Richard Rice, identified a photograph of the Bronco at trial.
Virginia Davis, Defendant‘s niece, testified that Defendant came by her residence in Midtown Memphis on a Thursday evening in November 1999. Defendant was driving a Bronco. Ms. Davis identified the Bronco as the same one pictured in the photograph identified previously by Mr. Rice. Ms. Davis stated that Defendant visited with her for about forty-five minutes. He asked her if she had a car; she did not. He also asked if her father still lived in Texas, to which she replied in the affirmative. Defendant told Ms. Davis he was going to Texas to visit her father. Defendant left at about 5:00 p.m.
Two days later, on a Saturday, Defendant returned to Ms. Davis’ residence in Midtown Memphis, still driving the Bronco. He parked the Bronco nearby and walked to her house. She did not admit him because, in the meantime, police officers had visited her. During their visit, she learned some things about Defendant that she was not “happy with.” However, she advised Defendant that “the law been there looking for [him].” Pursuant to the officers’ instructions, Ms. Davis contacted them about Defendant‘s second visit.
Kathryn Crane testified that, in November 1999, she was employed by Seessel‘s, a supermarket located in Midtown Memphis. She was the store‘s bookkeeper. Ms. Crane identified a cash register receipt generated by the store dated November 20, 1999, at 5:27 p.m. Ms. Crane also identified a debit card receipt for the purchase reflected by the cash register receipt.
Michelle Naef testified that she was a graduate student at the University of Memphis in the fall of 1999, studying for a master‘s degree in philosophy. She and the victim, Ms. Hillary Johnson, were teaching assistants for the same professor and became friends. That fall, the victim lived “on McLean and Linden.” Ms. Naef and the victim had planned to spend time together on Sunday, November 21, 1999. The victim had agreed to call Ms. Naef that Sunday morning to confirm their plans.
Ms. Naef last spoke with the victim on the morning of Saturday, November 20, 1999. When Ms. Johnson did not call the next morning as had been arranged, Ms. Naef called the victim at about 11:00 a.m. but did not receive an answer. Ms. Naef left a message. Not hearing back, Ms. Naef called again in the early afternoon and left another message. With still no return call, Ms. Naef called a third time. This time, the victim‘s answering machine was full and not taking additional messages. At this point, Ms. Naef became “scared.” Ms. Naef and “all of the graduate students” spent the next several days
On Sunday, November 21, 1999, Officer Jeffrey Herbison of the Memphis Police Department found the Bronco parked near Ms. Davis’ residence. He waited for someone to return to the vehicle, but no one did. After some hours, the police department towed it away. Officer Herbison identified on an aerial photograph the locations of Seessel‘s, Ms. Davis’ apartment, the place where the Bronco was found abandoned, and the victim‘s residence. Officer Herbison testified that all of these places were located in Memphis, Shelby County, Tennessee.
Nancy McPike testified that her daughter, the victim Hillary Johnson, moved from Chicago to Memphis in August 1999 to attend graduate school at the University of Memphis. After arriving in Memphis, Ms. Johnson purchased a white Hyundai automobile for $1,350. On Friday, November 19, 1999, Ms. McPike spoke with her daughter over the phone. Ms. McPike called Ms. Johnson on Sunday, November 21, 1999, but did not receive an answer. She called again late Sunday night, but again received no answer. After speaking with several of her daughter‘s friends, Ms. McPike contacted the police. Ms. McPike identified a jacket shown to her at trial as belonging to her daughter.
During the late afternoon of Saturday, November 20, 1999, Defendant carjacked Hillary Johnson as she was sitting alone in her car at a stop sign in Midtown Memphis, Shelby County, Tennessee. Defendant forced Ms. Johnson into the passenger seat of her car, and he began driving. Defendant drove Ms. Johnson to a remote location in Fayette County, Tennessee. There, he stabbed her once in the back with such force that the knife blade remained embedded in her body, the handle detached. Defendant dragged Ms. Johnson about twenty yards and concealed her under a sheet of tin near an old agricultural fuel tank. Defendant left Ms. Johnson to die of the knife wound. He left the site of the killing in Ms. Johnson‘s car and drove out of state, still trying to avoid his apprehension.
Defendant returned to southwest Tennessee several days later. He hid Ms. Johnson‘s car behind an old abandoned house and walked to Jessie Cochran‘s residence. Defendant entered her house when he found it unoccupied.
Lieutenant Rick Marlar of the Mississippi Highway Patrol testified that, on November 29, 1999, he overheard a broadcast that Ms. Johnson‘s car had been found hidden behind an old house in Tippah County, Mississippi. He reported to the scene; he described the area at trial as “very rural.” Because he was already involved in the search for Defendant, he and accompanying officers proceeded to Ms. Cochran‘s house, which was only a short distance away. As Lt. Marlar looked through a window, he saw Defendant sitting inside the house, watching television with a 9 mm. gun laying nearby. Speaking through the window, Lt. Marlar ordered Defendant to “freeze.” Defendant made a move toward his gun, causing Lt. Marlar to threaten to “kill him.” Defendant then raised his hands. Officers broke through the door and took Defendant into custody. On Defendant‘s person were discovered a .22 pistol and a knife. Lt. Marlar advised Defendant of his Miranda rights immediately after arresting him.
Lieutenant David Shaw of the Mississippi Highway Patrol arrived and questioned Defendant, again advising him of his Miranda rights. Defendant executed a written waiver of his rights and stated he would answer Lt. Shaw‘s questions. Lt. Shaw described Defendant‘s demeanor as “calm and cooperative.” Lt. Shaw took an
During this November 29 statement, Defendant admitted to taking Ms. Cochran‘s car. When the police then “got after” him, he “hit the woods” and “jumped out.” He remained in the woods two or three days when he found the storage building in which the Bronco was located. He took the Bronco and drove to Memphis, where he visited his niece, Virginia. He then drove to Texas, looking for Virginia‘s father. Unsuccessful in his search, Defendant returned to Memphis. He parked the Bronco near his niece‘s residence and walked to her apartment. She told him that “the law been there looking for [him].” He then “[t]ook off running.” He saw a “girl at a stop sign” in a white car. He “jumped in the car” on the passenger‘s side and made the driver pull over. He “grabbed her around the neck” and made her switch places with him. He then drove them out Highway 64. Defendant stated that he dropped the woman off on Highway 64 after taking some credit cards from her. He then drove the woman‘s car into Alabama and on into Florida. After several days, he returned to Ms. Cochran‘s residence. He left the white car “off a gravel road behind an old house” and walked from there to Ms. Cochran‘s house.
Defendant denied that the driver of the white car had been with him at the old house where he left the car. He stated that he had two pistols with him when he jumped in the white car, but did not pull either on the driver. He explained that the guns had been in his boots. He stated that, when he got in the car, “[s]he asked me don‘t hurt her. I said I ain‘t gone [sic] hurt you lady, all I want to do is git [sic] away. Not gone [sic] hurt you.” Defendant insisted that he then put the driver out on the highway and that when he left, “that girl was standing right there in that gravel road. I didn‘t harm that girl.” Defendant acknowledged having obtained the 9 mm. pistol from the Bronco.
Lieutenant Gerald Blum with the Memphis Police Department testified that he had been assigned to investigate the victim‘s disappearance. He initially questioned Defendant on November 30, 1999. During that interview, Defendant told Lt. Blum that “he was at an address in Midtown on the street, and he approached a white car.” Defendant told Lt. Blum that he got in the car and forced the female driver to drive around the city until they traveled down Highway 64, at which time he released the driver and kept the car. When Lt. Blum asked Defendant what he should tell the victim‘s family, Defendant said, “Tell them I‘m not the one that hurt her.” Defendant then paused and added, “Well, if she‘s hurt.”
Also reporting to the scene where Ms. Johnson‘s car was found was Federal Bureau of Investigation Special Agent C.M. Sturgis, who began investigating the victim‘s disappearance when it developed into “more than a missing person” case. Agent Sturgis testified that no blood was found in Ms. Johnson‘s car. In the abandoned house behind which the victim‘s car was found, officers found a woman‘s jacket, which was subsequently identified by Ms. McPike as belonging to the victim. Found a short distance away from the house was a plastic shopping bag bearing the Seessel‘s supermarket logo.
Frustrated at not having discovered Ms. Johnson‘s whereabouts by early December, Agent Sturgis traveled on December 3, 1999, to the jail in Oxford, Mississippi, where Defendant was in custody. Accompanying him was Special Agent Joseph
Agents Sturgis and Rinehart spent the next couple of hours attempting to communicate by telephone to other law enforcement officers the location of the area described to them by Defendant. Because of the difficulty in describing the exact location, the field officers were unsuccessful in finding the spot described by Defendant. Defendant offered several times to take Agents Sturgis and Rinehart to the location if they would put him in a car. Eventually, Defendant was allowed to leave the jail in Sheriff Buddy East‘s2 car. Taking directions from Defendant, Sheriff East, accompanied by Agent Rinehart, traveled to a remote and rural location in Fayette County, Tennessee. Agent Sturgis and Lt. Shaw followed in a second car. Upon arriving at the location described by Defendant, and after following Defendant‘s directions, the men found Ms. Johnson‘s body under two pieces of tin next to an old agricultural fuel tank. At this point, Agent Sturgis testified, Defendant “started crying.” Defendant was then returned to the Oxford, Mississippi, jail by Sheriff East.
Lt. Gerald Blum with the Memphis Police Department took a statement from Defendant on December 4, 1999. This statement was tape recorded and subsequently transcribed. The audio tape was played for the jury and copies of the transcript provided to it. In this statement, Defendant admitted that he was responsible for Ms. Johnson‘s death. He stated that Ms. Johnson had “come out behind the [car] seat” with a knife and that he “grabbed her arm and took it away from her.” This occurred “[w]hen [they] got out the car up there in the woods.” He stated that they “fought” and that he had to use force to disarm Ms. Johnson. Defendant denied having been hurt during the fight but acknowledged that Ms. Johnson “got cut.” He did not, however, remember stabbing her. After their fight, he “put her under some tin” after dragging her twenty yards. Defendant stated that the victim was “tryin’ to move” as he dragged her, but he did not know if she was dead or alive after he placed her under the tin. Defendant stated that he decided to reveal the victim‘s whereabouts because he “wanted her to be with her family for Christmas and get this over with. It was eating [him] up. It was eating [him] alive.”
Dr. O.C. Smith testified that he performed an autopsy on the victim. X-rays indicated a “retained knife blade present in her left chest cavity.”3 The knife had entered the victim‘s upper left back and penetrated the victim‘s lung and aorta. The knife wound caused the victim‘s death
Defendant presented no proof at the guilt phase of his trial.
Upon the conclusion of proof, the jury convicted Defendant of theft under $10,000, especially aggravated kidnapping, and first degree premeditated murder.
FACTS ADDUCED DURING PENALTY PHASE
Prior to the State adducing any testimony during the penalty phase of Defendant‘s trial, the trial court heard the proposed testimony of Dr. Ronald Sundstrom and Ms. McPike in a jury-out hearing. Dr. Sundstrom is a professor of philosophy at the University of Memphis and employed the victim as his teaching assistant. Dr. Sundstrom described the effect of the victim‘s murder on himself, his undergraduate students, his graduate students, and the philosophy department as a whole. Ms. McPike is the victim‘s mother. She described the effect of the victim‘s murder on her family and the victim‘s friends. The trial court found that this proposed testimony was “basically related to the emotional and psychological impact that it‘s had on the family and friends and colleagues” and ruled that the probative value of this evidence outweighed its prejudicial effect. Accordingly, the trial court determined this testimony was admissible.
Thereafter, with the jury returned to the courtroom, Dr. Sundstrom testified that the victim had been his teaching assistant while a graduate student at the school. She began working for him in August 1999. As one of his teaching assistants, the victim mentored sixty of his one hundred eighty students, grading their papers, teaching some discussion sessions, and counseling them about their coursework. Prior to her death, the victim had met with these students six times. Dr. Sundstrom testified about the impact of the victim‘s disappearance and death on the philosophy department:
Well, the impact was tremendous. It‘s hard to quantify. The psychological impact—the every-day-life impact was tremendous on [the students she mentored, her associate graduate students, and the faculty]. The undergraduates whom she taught w[ere] very afraid that, you know, the course wasn‘t going to go on. They were traumatized—someone they knew intimately was murdered in this way.
. . . .
Many of them couldn‘t finish—many of them could not go on. Many of them could not complete their papers. It was very difficult for the undergraduates. I had a number of undergraduates approach me, and you know, who was caring for the undergraduates? There were so many of them to care for. Some would approach me in tears about this. It was very difficult for them, and unfortunately I didn‘t have the ability to care for them. There were too many of them.
The same with these graduate students.
. . . .
[T]he whole department ground to a halt. The students did not turn in their papers. Teachers did not teach. Life just didn‘t go on as we watched the news and as we waited for her to come back.
. . . .
Numbers of the other faculty, including myself, could not teach. We just couldn‘t teach, you know, under those
circumstances. Our lives were devastated. Everything, again, ground to a halt. There was little to no activity around, you know, this education that we‘re supposed to be providing to everybody. The graduate students themselves were severely affected because, you know, this was their program. They hoped to be—to get master degrees or Ph.D.‘s in philosophy, and many of them just couldn‘t finish classes—couldn‘t turn in papers.
Dr. Sundstrom testified that he believed one of the graduate students left “because of this.” Other graduate students were unable to complete their coursework and received “incompletes.” Some of the graduate students were not able to complete these courses later, resulting in the “incomplete” grades becoming “F‘s.” Dr. Sundstrom testified that, for these students, “their future is very much in question as professors of philosophy.” Dr. Sundstrom continued: “the structure of an academic department was brought to a complete standstill, and we just huddled together and cried. That was it. That‘s all we could do.”
Nancy McPike, the victim‘s mother, testified that the victim‘s death “never, ever leaves” her family. She testified about the difficulties the victim‘s younger brother had doing his schoolwork in sixth and seventh grades. She testified about her husband‘s inability to start new projects. Ms. McPike herself had been unable to complete her graduate school coursework. Ms. McPike‘s mother, the victim‘s grandmother, “cries” and “doesn‘t understand.”
Ms. McPike explained that the victim‘s best friend had had an argument with the victim just before the kidnapping. Ms. McPike testified that “[t]hey can never make up” and that the friend has “been in therapy ever since. She had herself admitted to a hospital because she was afraid she would take her own life because of this.” Ms. McPike continued:
You know, I told you everyone loved Hillary. Everyone just loved her right away. She has a whole army of friends out here who came to witness this. She has friends all over the world who will never have her again. She was such a great friend, and it makes you sick to your stomach. Sometimes when I think that she‘s dead, I just can‘t breathe any-more. When I saw her picture—this beautiful picture, I could hardly breathe.
. . . .
It‘s devastating. It‘s devastating. I don‘t know what it means for her to be dead and for me to be alive. I just don‘t know what it means.
Joe Warren, an employee in the Criminal Court Clerk‘s Office in Shelby County, Tennessee, testified that Defendant was convicted in Shelby County in 1974 of three counts of robbery with a deadly weapon and one count of rape.
Mary Alice Busby, the Circuit Court Clerk in Lafayette County, Mississippi, testified that Defendant was convicted in 2001 in Mississippi of kidnapping and manslaughter. Concerning this kidnapping conviction, James Allen Nault of Oxford, Mississippi, testified that, on November 15, 1999, he saw Defendant trying to kidnap his wife. Mr. Nault approached Defendant, at which time Defendant pointed a shotgun at him. Mr. Nault told Defendant to take him instead of his wife, and Defendant agreed. They got into Mr. Nault‘s car with Mr. Nault driving and Defendant keeping the gun pointed at Mr. Nault. While they drove, Defendant threatened to kill several people that Mr. Nault knew. At Defendant‘s direction, Mr. Nault drove them down a gravel road. Defendant got out and walked off into the woods.
Concerning the Mississippi manslaughter conviction, Sheriff Buddy East testified that he began looking for Defendant after hearing of Mr. Nault‘s kidnapping. He sent investigators to the residence of Mr. William Bramlett, one of the persons Defendant had threatened while talking to Mr. Nault. These law enforcement persons located Mr. Bramlett and warned him about Defendant. They continued looking for Defendant but were unable to locate him. The next morning, November 16, 1999, Mr. Bramlett was reported missing. Mr. Bramlett‘s vehicle was not at his residence. Sheriff East put out an alert for Mr. Bramlett and his pick-up truck. Officers walked through Mr. Bramlett‘s residence but did not find him. The next day, a family member found Mr. Bramlett‘s body in his home, hidden under a mattress. Mr. Bramlett had been shot with a .22 caliber pistol. Law enforcement then released information through the media in an effort to apprehend Defendant. The information indicated that Defendant was wanted for capital murder. Sheriff East testified that Mr. Bramlett‘s truck was eventually found two or three miles from Jessie Cochran‘s house.
As its final piece of evidence during the penalty phase of Defendant‘s trial, the State submitted certified records from Alabama reflecting Defendant‘s 1982 conviction of robbery in the first degree.
Defendant put on no proof.
Upon conclusion of the proof, the jury found the existence of three aggravating circumstances: (a) Defendant was previously convicted of one or more felonies, other than the present charge, the statutory elements of which involve the use of violence to the person; (b) the offense was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of Defendant or another; and (c) the murder was knowingly committed, solicited, directed, or aided by Defendant while Defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, theft. See
ANALYSIS
I. VENUE
Defendant contends that the State failed to establish that Shelby County was the correct venue in which to try him for his first degree premeditated murder of Ms. Johnson, arguing that the proof established that Defendant murdered the victim in Fayette County where her body was found. We disagree.
Our Constitution provides that an accused must be tried in the county in which the crime was committed.
First degree premeditated murder is defined as the “premeditated and intentional killing of another.”
Defendant told police officers in his December 4th statement that he was in Memphis “runnin’ from the law out of Mississippi.” While visiting his niece in Memphis, he learned that “the law was looking” for him there. He left his niece‘s Midtown apartment on foot, abandoning the stolen Bronco in which he had arrived. As he started across a street, “this girl pulled up and asked [him] a question and when she did, [he] jumped in the car with her.”4 Defendant told police in his November 29th statement that he jumped in the passenger side of the car and then made the victim “pull over, pull across the street, down another street and made her switch places with [him].” Defendant explained that he forced the victim to change places with him by “grabb[ing] her around the neck.” Defendant said that the victim told him that “she‘d cooperate as long as [he] didn‘t hurt her . . . that she‘d wait until she got back to her apartment before she called the law. Give [him] enough time, why she said that [he] d[idn‘t] know.” Defendant repeated: “I just grabbed her around the neck and made her get over in the passenger‘s side and I got under the driver‘s seat. I didn‘t hurt her.”
Defendant was trying to elude capture at the time he commandeered the victim‘s car in Shelby County. He could have let her go but he deliberately and forcefully kept her in the car with him. His overarching concern was evading apprehension. The victim‘s contact with him added to the risk of his capture if she was allowed to speak with anyone. It was reasonable for the jury to infer that, at the time Defendant determined to keep the victim with him in the car, he determined to kill her. Defendant was in Shelby County at the time he forced the victim to leave the driver‘s seat and sit in the passenger‘s seat. Accordingly, we conclude that the State adduced sufficient proof for the jury to infer that Defendant determined to kill the victim while still in Shel-
Defendant relies upon Reynolds v. State, 199 Tenn. 349, 287 S.W.2d 15 (1956), for the proposition that a murder is presumed to have been committed where the body is found. Defendant‘s reliance is misplaced. In Reynolds, the defendant was convicted of second degree murder. The victim had last been seen alive in Wilson County, her body was found in Wilson County, her clothes were found in Wilson County, and the victim “died from a broken neck which apparently would keep her from wandering around any.” Id. at 16. In short, there was no proof adduced to rebut the presumption that her murder had been committed entirely in Wilson County. Id.
In this case, as set forth above, the victim was last seen alive by anyone other than Defendant in Shelby County and was kidnapped in Shelby County. Although her body was found in Fayette County, we have concluded that the jury was entitled to infer that Defendant determined to kill the victim while they were in Shelby County, thereby committing one of the elements of first degree premeditated murder in Shelby County. This case is, then, distinguishable from Reynolds.
Defendant is not entitled to a new trial on this basis.
II. SUBSTITUTION OF TRIAL JUDGE
After the jury was sworn and opening statements had been made, but prior to any witnesses being called, the original trial judge announced that he had suffered a death in his immediate family. Stating that there was “simply no way [he] can proceed with this trial this week under these circumstances,” the judge explained that he considered himself unable to proceed by reason of a “disability” as contemplated by
Later that afternoon, Judge Jon Kerry Blackwood from Somerville recommenced the trial. Defense counsel renewed their objection, stating that they “would consent to a continuance rather than having a special judge come in to hear the matter.” Judge Blackwood overruled the objection, and the trial proceeded. Defendant now contends that the original trial judge should have declared a mistrial, arguing that the death in the original trial judge‘s immediate family did not constitute a “disability” under
Our Rules of Criminal Procedure provide that,
If by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or who may be assigned to the court, upon certifying that he or she has become familiar with the record of the trial, may proceed with and finish the trial.
This Court has previously recognized that the rules of construction applicable to statutes are likewise applicable to the
Obviously, a judge‘s death renders him or her “unable to proceed with the trial.” Similarly, a judge‘s illness may render him or her at least temporarily unable to proceed with the trial. Both of these events are beyond a judge‘s immediate control. Neither of these events is the result of a simple scheduling conflict or a conflict in professional priorities. All persons, in all walks of life, are subject to the sometimes sudden demands of their health.
Similarly, all persons, including trial judges, are subject to the sometimes sudden demands of the health of their immediate families. In this case, the original trial judge‘s mother-in-law died unexpectedly. As with a bout of serious personal illness, the personal demands upon the judge immediately became urgent and imperative. As with a bout of serious personal illness, those demands rendered the judge temporarily but unavoidably “unable to proceed with the trial.” In terms of rendering a judge temporarily unable to proceed with a trial, we see little difference in cause or effect between a judge‘s own illness and a death in the judge‘s immediate family. Accordingly, we construe the term “other disability” as used in
We note that the term “other disability” is not limited to “other physical disability.” Thus, we do not construe the term as requiring that the judge experience some physical impairment to have suffered an “other disability.”
We further note that subsection (b) of
Upon the original judge‘s disability, a substitute judge may proceed with the trial “upon certifying that he or she has become familiar with the record of the trial.” In this case, Judge Blackwood stated on the record that he had familiarized himself with the record in this cause.
III. ADMISSION OF PHOTOGRAPHS OF VICTIM
While talking to Defendant at the Oxford jail, Agent Sturgis displayed several photographs of the victim taken while she was a child. Either he or Agent Rinehart remarked, “She was a pretty child—she was such a pretty child, and it‘s just a shame that we can‘t find her.” Later, one of the agents said, “If we could just get her body back that the family could be resolved and it was coming up on Christmas time—it was a very difficult time for the family, and if she was lying out somewhere, the animals might be getting to her, and that would just be so sad.” It was sometime after the photographs had been displayed and these comments made that Defendant began describing to Agent Sturgis where the victim‘s body could be found.
During Agent Sturgis‘s testimony at trial, one of the prosecutors showed him an envelope, which Agent Sturgis identified as the one that had contained the photographs and on which Defendant had drawn a map to the victim‘s body. While examining the envelope, Agent Sturgis stated, “I believe there are still photos in here of the young lady.” The prosecuting attorney thereupon asked that the envelope be made an exhibit to Agent Sturgis‘s testimony. Defense counsel objected to admission of the photographs contained in the envelope on the grounds that the photographs were not relevant. The trial court overruled the objection. Defendant now contends that the trial court thereby erred.
The challenged photographs appear to have figured into Defendant‘s motives in deciding to confess his murder of the victim to law enforcement. Defendant‘s motives in confessing would be at issue—and evidence relating to his motives thereby relevant—only if the veracity of
Given the marginal relevance of Defendant‘s motives in confessing, the probative value of the photographs was also only slight. The danger of unfair prejudice, on the other hand, was significant. We agree with the Court of Criminal Appeals that “the photographs taken throughout the victim‘s childhood had the distinct probability of appealing to the emotions of the jury.” The very reason that Agent Sturgis displayed the photos to Defendant, and the fact that Defendant‘s sympathies were so stirred thereby that he finally confessed to murdering the victim, make plain the power possessed by these particular photographs. “Prejudice becomes unfair when the primary purpose of the evidence at issue is to elicit emotions of ‘bias, sympathy, hatred, contempt, retribution, or horror.‘” State v. Collins, 986 S.W.2d 13, 20 (Tenn. Crim. App. 1998) (quoting M. Graham, Handbook of Federal Evidence, 182-83 (2d ed. 1986)).
Moreover, the photographs were cumulative to Agent Sturgis’ testimony about what prompted Defendant to confess. To the extent the jury needed to know why Defendant decided to tell law enforcement where the victim‘s body could be found, Agent Sturgis’ testimony was sufficient to answer that question. The actual photographs viewed by Defendant were needlessly cumulative to that issue.
We hold, therefore, that the trial court erred in permitting the photographs to remain in the envelope that was admitted into evidence. See State v. Dicks, 615 S.W.2d 126, 128 (Tenn. 1981) (holding that photo of murder victim while alive should have been excluded “since it added little or nothing to the sum total knowledge of the jury“). While the State argues that the record does not reflect that the jury actually removed the photographs from the envelope and viewed them, we are not persuaded to adopt this line of reasoning. All of the exhibits admitted at trial were available to the jury during its deliberations. See
We are persuaded, however, that the trial court‘s error in permitting the photographs to be left in the envelope was harmless. The proof in this case that Defendant murdered the victim, intentionally and with premeditation, is overwhelming. While the jury‘s sympathies may have been stirred by the photographs of the
Defendant also contends that the admission of the photos “served in the sentencing determination to divert the jury‘s attention from focusing on the individual circumstances of the defendant and his mitigation in violation of the Eighth and Fourteenth Amendments of the United States Constitution,” and that the photos “must have weighed heavily upon the jury‘s mind when assessing whether to impose the death penalty.” While we have already determined that the photographs should not have been admitted during the guilt phase of Defendant‘s trial, we are not persuaded that they had a prejudicial impact upon the jury‘s sentencing deliberations. As set forth more fully below, the State in this case adduced sufficient evidence to establish three aggravating circumstances, a single one of which would have entitled the jury to sentence Defendant to death. None of the evidence adduced in support of these three aggravating circumstances included the photographs. The prosecution did not mention the photographs during its opening statement or closing arguments in the penalty phase of Defendant‘s trial. The trial court‘s instructions to the jury during the penalty phase did not include any reference to the photos. Accordingly, we conclude that submission of the photographs to the jury did not prejudice Defendant during the sentencing phase of his trial. Defendant is not entitled to a new sentence hearing on the basis of the erroneously admitted photographs.
IV. SUFFICIENCY OF THE EVIDENCE
Defendant asserts that the evidence is not sufficient to establish that he murdered the victim with premeditation. We disagree.
When evaluating the sufficiency of the evidence, we must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In making this determination, we afford the prosecution the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences which may be drawn therefrom. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions concerning the credibility of the witnesses, the weight to be given the evidence, and factual issues raised by the evidence are resolved by the trier of fact. Id. Because a verdict of guilt removes the presumption of innocence and imposes a presumption of guilt, the defendant upon conviction bears the burden of showing why the evidence is insufficient to support the verdict. State v. Rice, 184 S.W.3d 646, 661 (Tenn. 2006); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
Our criminal code provides that the term “premeditation” as used in our first degree murder statute refers to an act done after the exercise of reflection and judgment. “Premeditation” means that the intent to kill must have been formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was suffi-
The proof in this case established that Defendant carjacked the victim and forced her to remain in the car with him. He commandeered the victim‘s car because he was trying to evade arrest. Defendant claimed to have assured the victim that he was not going to hurt her, from which the jury could have inferred that Defendant had endeavored to keep the victim from trying to escape. Contrary to his assurances, Defendant subsequently drove the victim to a remote area and stabbed her in the back, leaving the knife blade embedded in her chest. The victim was unarmed when Defendant stabbed her. While she was still moving, Defendant dragged the victim some twenty yards and hid her body under some sheets of tin. He then left her to die, driving away and out of the state in her car.
Defendant‘s motive in his murderous crime spree began and ended with his attempt to avoid apprehension. He carjacked the victim with that goal in mind and determined to kill her with that goal in mind. The manner and circumstances of the killing support the jury‘s inference that Defendant killed the victim intentionally and with premeditation. The evidence is sufficient to support Defendant‘s conviction of first degree premeditated murder. Accordingly, Defendant is not entitled to relief on this ground.
V. VICTIM IMPACT EVIDENCE
Defendant avers that the testimony of Dr. Sundstrom and Ms. McPike went far beyond properly admissible victim impact evidence and thereby violated his due process rights to a “fundamentally fair penalty determination.” The State disagrees.
Initially, we note that Dr. Sundstrom and Ms. McPike were the first witnesses to testify during the sentencing phase of Defendant‘s trial. We determined in State v. Nesbit, 978 S.W.2d 872, 891 (Tenn. 1998), however, that “victim impact evidence should not be admitted until the trial court determines that evidence of one or more aggravating circumstances is already present in the record.” Defendant did not object to the order of the State‘s proof and does not raise this issue on appeal. Moreover, proof of Defendant‘s motive for killing the victim, relevant to the (i)(6) aggravating circumstance, and proof that he committed the murder during his theft of the victim‘s car, relevant to the (i)(7) aggravating circumstance, had been admitted during the guilt phase of his trial. Accordingly, we hold that any error resulting from the order of the State‘s proof during the sentencing phase was harmless. See State v. Austin, 87 S.W.3d 447, 463-64 (Tenn. 2002) (finding harmless error where victim impact evidence was introduced before trial court determined that evidence of aggravating circumstances was in record).
Our criminal code provides that
The court shall permit a member or members, or a representative or representatives of the victim‘s family to testify at the [capital] sentencing hearing about the victim and about the impact of
the murder on the family of the victim and other relevant persons.
In McKinney, a coworker of the murder victim testified about the victim‘s service as a police officer, including a description of the victim‘s duties and activities. We noted that the witness‘s testimony “was limited to factual background—he did not testify about the effect of the victim‘s death on himself, other officers, society, or the Memphis Police Department.” Id. at 310. We concluded that this testimony was “limited to providing a ‘brief glimpse’ into the life of the victim and that such a glimpse did not violate the defendant‘s right to due process or equal protection.” Id.
In our earlier decision in Nesbit, we emphasized that “not any and all victim impact evidence the prosecution wishes to offer at a capital sentencing hearing is admissible.” 978 S.W.2d at 891. We further recognized that “there is no bright-line test, and the admissibility of specific types of victim impact evidence must be determined on a case-by-case basis.” Id. “[S]uch evidence . . . should be closely scrutinized and restrained so as not to be unduly prejudicial or appeal to the emotions or sympathies of the jury.” McKinney, 74 S.W.3d at 309. Further, “victim impact evidence which threatens to render the trial fundamentally unfair or which poses a danger of unfair prejudice is not appropriate and should be excluded by the trial judge.” Nesbit, 978 S.W.2d at 891. We turn now to the victim impact evidence at issue in this case.
We agree with the Court of Criminal Appeals that the majority of Dr. Sundstrom‘s testimony went beyond the scope of that victim impact evidence contemplated by our decision in Nesbit. In line with McKinney, his testimony about the victim‘s duties and activities while a student and teaching assistant at the University of Memphis was proper. However, the majority of Dr. Sundstrom‘s testimony was about the effect of the victim‘s death on everyone in his department: undergraduate students, graduate students, and faculty. He testified that the department “ground to a halt“; students were unable to complete their work and professors unable to teach their classes. He went so far as to claim that the murder threatened the career aspirations of some of the students.
Dr. Sundstrom‘s testimony detailed the far-reaching effects that a single murder can have. His description of the virtual collapse of the philosophy department illustrated how interwoven a single individual‘s life is with many others. To that extent, his testimony had probative value. See Payne v. Tennessee, 501 U.S. 808, 825 (1991) (recognizing that the prosecution has a legitimate interest in adducing proof that “the victim is an individual whose death
We also agree with the Court of Criminal Appeals that portions of Ms. McPike‘s testimony should not have been admitted. Ms. McPike testified that one of the victim‘s friends had been in therapy since the murder and “was afraid she would take her own life because of this.” Again, this testimony exceeds the scope of permissible victim impact evidence. We further conclude that Ms. McPike should not have been allowed to testify that the victim had “a whole army of friends out here” and that “friends all over the world will never have her again.” Such testimony goes beyond describing the effect of the victim‘s murder on her family and beyond providing a glimpse into her life. See State v. Burns, 979 S.W.2d 276, 283 (Tenn. 1998) (holding that victim‘s mother‘s testimony about how the murders had adversely affected the entire community exceeded the scope of victim impact evidence contemplated by Nesbit).
Notwithstanding the erroneous admission of this evidence, we conclude that the trial court‘s error in this regard did not render the proceedings fundamentally unfair or unduly prejudicial to Defendant. See Burns, 979 S.W.2d at 283. The prosecutor‘s reference to this testimony was limited during closing argument to the following: “Dr. Sundstrom and Nancy McPike took the stand and testified about the emotional and psychological impact of Hillary Johnson‘s murder in those two communities. That is not—that is not an aggravating circumstance for you to consider.” The trial court later instructed the jury:
The prosecution has introduced what is known as victim-impact evidence. This evidence has been introduced to show the financial, emotional, psychological, or physical effects of the victim‘s death on the members of the victim‘s immediate family.
You may consider this evidence in determining an appropriate punishment; however, your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the victim—pardon me—not as an emotion [sic] response to the evidence.
Victim-impact evidence is not the same as an aggravating circumstance. Proof of an adverse impact on the victim‘s family is not proof of an aggravating circumstance. Introduction of this victim-impact evidence, in no way, relieves the state of its burden to prove, beyond a reasonable doubt, at least one aggravating circumstance which has been alleged. You may consider this victim-impact evidence in determining the appropriateness of the death penalty, only if you first find that the existence of one or more aggravating circumstances has been proven, beyond a reasonable doubt, by evidence independent from the victim-impact evidence and find that the aggravating circumstance or circumstances found outweigh the finding of one or more mitigating circumstances beyond a reasonable doubt.
This instruction conforms with that required by Nesbit, 978 S.W.2d at 892. Furthermore, testimony about the victim‘s im-
Hillary was a girl who made friends fast. She would go down to the park and come home and say, “I met some friends today.” And we would look at her and say, “How can they be your friends because it‘s only a day?” She developed very warm relationships very quickly. She had great, great students to be friends with there at the university. They were terrified themselves.
The jury in this case determined that the State proved three aggravating circumstances: (a) Defendant was previously convicted of one or more felonies, other than the present charges, the statutory elements of which involve use of violence to the person; (b) Defendant committed the offense for the purpose of avoiding, interfering with, or preventing his lawful arrest or prosecution; and (c) Defendant knowingly committed the murder while he had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, theft. See
The jury heard several minutes of victim impact testimony that it should not have heard. However, the trial court properly instructed the jury about how it was to consider this evidence. The jury is presumed to follow its instructions. State v. Shaw, 37 S.W.3d 900, 904 (Tenn. 2001). Moreover, the prosecution did not rely on or stress the erroneously admitted testimony during closing arguments. We are therefore convinced beyond a reasonable doubt that the jury would have sentenced Defendant to death even had it not heard the improperly admitted testimony. Accordingly, Defendant is entitled to no relief on this basis.
VI. INSTRUCTION REGARDING PRIOR VIOLENT FELONIES
The State introduced proof during the sentencing phase that Defendant had been convicted in 1974 of three counts of robbery with a deadly weapon and one count of rape. All of these convictions arose in Tennessee. The State also adduced proof that Defendant had been previously convicted in Mississippi of kidnapping and manslaughter, and in Alabama of robbery in the first degree. The trial court subsequently instructed the jury as follows:
The defendant was previously convicted of one or more felonies other than the present charge, the statutory elements of which involve the use of violence to the person. The state is relying upon the crimes of robbery first-degree, robbery with a deadly weapon, kidnaping, manslaughter, and rape, which are felonies, the statutory elements of which involve the use of violence to the person.
See
We have previously rejected this argument in State v. Cole, 155 S.W.3d 885, 904 (Tenn. 2005). In Cole, we reexamined our decision in Sims, 45 S.W.3d at 11-12, in which we set forth the procedure for a trial court to follow where the State alleg-
In determining whether the statutory elements of a prior felony conviction involve the use of violence against the person for purposes of
§ 39-13-204(i)(2) , we hold that the trial judge must necessarily examine the facts underlying the prior felony if the statutory elements of that felony may be satisfied with or without proof of violence.
Sims, 45 S.W.3d at 11-12. Reexamining this holding in Cole in response to the defendant‘s Apprendi argument, we held:
The Sims procedure involves a legal determination, and as such this procedure does not transgress the dictates of Apprendi and its progeny. The (i)(2) aggravating circumstance requires only that the statutory elements of the prior felony involve the use of violence to the person. The Sims procedure authorizes trial judges merely to examine the facts, record, and evidence underlying the prior conviction to ascertain which “statutory elements” served as the basis of the prior felony conviction. This is a legal determination that neither requires nor allows trial judges to make factual findings as to whether the prior conviction involved violence. This legal determination is analogous to the preliminary questions trial judges often are called upon to decide when determining the admissibility of evidence.
We again upheld the Sims procedure in two recent cases. In Rice, 184 S.W.3d at 668-69, we considered the Sims procedure in light of the United States Supreme Court‘s recent decision in Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005). In Shepard, the Court held that, in determining the underlying character of a predicate offense to which the defendant had pled guilty, the trial court “is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id. at 16, 125 S. Ct. 1254. When the prior conviction resulted from a jury trial, the trial court is limited to examining the charging documents filed in the court of conviction and instructions given to the jury. Id. at 20, 125 S. Ct. 1254 (citing Taylor v. United States, 495 U.S. 575 (1990)). In Rice, we determined that ”Shepard does not change a judge‘s ability to find the ‘fact of a prior conviction,‘” but simply limits “the scope of the judge‘s inquiry to reliable judicial records regarding the prior conviction and precludes the judge from re-examining the facts underlying that conviction.” 184 S.W.3d at 669. Similarly, we held in State v. Ivy, 188 S.W.3d 132, 151 (Tenn. 2006), that ”Shepard clarifies but does not invalidate the procedures this Court adopted in Sims.” Thus, when the State alleges prior violent felony convictions, the statutory elements of which do not necessarily involve the use of violence to the person, the trial court must conduct the Sims analysis, limiting its inquiry to the records delineated by Shepard. We turn now to the prior felonies relied upon by the State in this case.6
Defendant was convicted in 1974 of four felonies he committed in Tennessee
As to the rape conviction, the indictment charging Defendant with this crime alleges that he “did unlawfully and feloniously have unlawful carnal knowledge of [the named victim], a female, twelve (12) years of age, forcibly and against her will.” A jury determined Defendant to be guilty of this crime as charged. In 1972, at the time Defendant committed this offense, rape was defined by our criminal code as “the unlawful carnal knowledge of a woman, forcibly and against her will.”
Defendant pleaded guilty to committing “robbery first degree” in 1981 in Alabama. That crime is defined as the commission of a robbery in the third degree while armed with a deadly weapon or dangerous instrument, or in which the accused causes serious physical injury to another.
It is obvious without further comment that the crime of manslaughter, which Defendant pleaded guilty to committing in November 1999 in Mississippi,7 is an offense the statutory elements of which involve the use of violence to the person.
Any person who shall without lawful authority forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be secretly confined or imprisoned against his or her will, . . . shall, upon conviction, be imprisoned for life in the state penitentiary if the punishment is so fixed by the jury in its verdict.
The indictment charging Defendant with kidnapping8 recites that, on or about November 15, 1999, Defendant “did then and there unlawfully, willfully, feloniously and without authority of law forcibly seize and confine, inveigle, or kidnap” the named victim. (emphasis added). The Judgment of Guilt on Jury Verdict reflects simply that the jury found Defendant “guilty of kidnaping but are unable to fix the penalty.” The State did not present the trial court with the jury instructions provided to the jury at Defendant‘s kidnapping trial.
We conclude that the information provided to the trial court was not a sufficient basis upon which to conclude that the statutory elements of the kidnapping of which Defendant was convicted necessarily involved the use of violence to the person.9 Accordingly, we are forced to conclude that the trial court erred when it instructed the jury that it could consider Defendant‘s kidnapping conviction in determining whether to apply the (i)(2) aggravating circumstance.
We determined in Ivy that the appropriate analysis to use in addressing this error is analogous to that utilized in State v. Howell, 868 S.W.2d 238, 259-62 (Tenn. 1993), where an aggravating circumstance was held invalid but other valid aggravating circumstances remained. See Ivy, 188 S.W.3d at 152. In that event, the invalid aggravating circumstance is harmless if the reviewing court concludes “beyond a reasonable doubt that the sentence would have been the same had the jury given no weight to the invalid . . . aggravating [circumstance].” Howell, 868 S.W.2d at 262. We cautioned, however, that
[i]n order to guarantee the precision that individualized sentencing considerations demand and provide a principled explanation for our conclusion in each case, it is important, when conducting harmless error review, to completely examine the record for the presence of factors which potentially influence the
sentence ultimately imposed. These include, but are not limited to, the number and strength of remaining valid aggravating circumstances, the prosecutor‘s argument at sentencing, the evidence admitted to establish the invalid aggravator, and the nature, quality and strength of mitigating evidence.
Id. at 260-61 (footnote omitted).
In this case, the record demonstrates that the trial court‘s error was harmless beyond a reasonable doubt. The jury was properly instructed about Defendant‘s prior convictions of manslaughter, four counts of armed robbery, and one count of rape. These prior convictions, particularly the manslaughter and rape, were objectively reliable and qualitatively persuasive as to the (i)(2) aggravating circumstance. Furthermore, the jury was properly instructed on the (i)(6) and (i)(7) aggravating circumstances, i.e., the killing was committed to avoid lawful arrest or prosecution, and was knowingly committed in the perpetration of a theft. While the prosecutor made a brief reference to the kidnapping in her closing arguments and several references to “seven” prior convictions in support of the (i)(2) aggravating circumstance, the transcript demonstrates that the prosecutor‘s arguments would have been no less effective with no reference to the kidnapping and references to “only” six prior convictions. Moreover, the transcript demonstrates that the prosecutor placed about as much emphasis on the evidence supporting the other two aggravating circumstances. Finally, the “nature, quality and strength” of the mitigating evidence was minimal, as Defendant chose not to adduce any such proof.
In sum, we are convinced beyond a reasonable doubt that the jury would have sentenced Defendant to death even without the trial court‘s erroneous instruction regarding Defendant‘s kidnapping conviction. Defendant is entitled to no relief on this basis.
IV. MANDATORY REVIEW
When a defendant has been sentenced to death, we must conduct a mandatory review of the sentencing process pursuant to
A. Imposition of Death Penalty
Initially, we find that the sentencing phase of Defendant‘s trial was conducted pursuant to the procedure established in the applicable statutory provisions and rules of criminal procedure. Accordingly, we conclude that the death penalty was not imposed in an arbitrary fashion.
B. Sufficiency of Aggravating Circumstances
We turn now to the sufficiency of the evidence supporting the jury‘s finding of statutory aggravating circumstances: (a) Defendant was previously convicted of one or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person; (b) Defendant committed the offense for the purpose of avoiding, interfering with, or preventing his lawful arrest or prosecution; and (c) Defendant knowingly committed the murder while he had a substantial role in committing theft. See
1. Prior Convictions
As set forth above, the State introduced proof that Defendant had been previously convicted of four counts of robbery involving a deadly weapon, one count of manslaughter, one count of rape, and one count of kidnapping. Although we have held that the trial court erred in allowing the kidnapping conviction to be used as proof of this aggravating circumstance, the proof of the remaining convictions was proper and more than sufficient to support the jury‘s finding of this aggravating circumstance. See
2. Murder Committed to Avoid Arrest or Prosecution
Defendant contends that the evidence is not sufficient to establish that he killed the victim in order to avoid his arrest and prosecution. See
In this case, Defendant admitted that he commandeered the victim‘s car because he was “on the run” from law enforcement for crimes he committed elsewhere. He could have ejected the victim from her car at the moment he took it, but he forced her to remain in the car with him. He subsequently drove her to a remote location, stabbed her, and concealed her body. Defendant then fled the state in the victim‘s car. This proof was sufficient to establish that Defendant killed the victim at least in part to prevent his apprehension. See, e.g., Reid, 164 S.W.3d at 316 (proof supported (i)(6) aggravating circumstance where defendant robbed and kidnapped the victims, took them to a remote area, stabbed them, and abandoned them); State v. Powers, 101 S.W.3d 383, 399 (Tenn. 2003) (proof supported (i)(6) aggravating circumstance where defendant abducted victim from her driveway, drove her to a remote location, robbed and killed her, and left her body in a storage room). Application of this aggravating circumstance is supported by sufficient proof.
3. Killing Committed During Theft
Our criminal code provides that an aggravating circumstance is established where
[t]he murder was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb[.]
C. Aggravating Circumstances Outweigh Mitigating Circumstances
During the sentencing phase of Defendant‘s trial, the defense presented no proof of any mitigating circumstances that might counteract the State‘s proof of aggravating circumstances. Proof in the nature of mitigating circumstances presented during the guilt phase of Defendant‘s trial consisted of Agent Sturgis‘s testimony about Defendant‘s cooperation in locating the victim‘s body, his remorse for the killing, and his weeping at the scene where the victim‘s body was found. Also, a waiver of rights form signed by Defendant indicates that he has a third-grade education.10 We conclude that the State‘s proof of aggravating circumstances outweighs any mitigating circumstances beyond a reasonable doubt.
D. Proportionality
[45, 46] We turn now to our analysis of whether the sentence imposed in this case is excessive or disproportionate to the penalty imposed in similar cases. This review identifies aberrant, arbitrary, or capricious sentencing by determining whether the death sentence is “disproportionate to the punishment imposed on others convicted of the same crime.” Bland, 958 S.W.2d at 662 (quoting Pulley v. Harris, 465 U.S. 37, 42-43 (1984)). We begin with the presumption that a death sentence is proportional with the crime of first degree murder. State v. Hall, 976 S.W.2d 121, 135 (Tenn. 1998).
In conducting this review, we employ the precedent-seeking method of comparative proportionality review, in which we compare this case with other cases involving similar defendants and similar crimes. See Bland, 958 S.W.2d at 665-67. While no defendants or crimes are identical, a death sentence is disproportionate if a case is “plainly lacking in circumstances consistent with those in cases where the death penalty has been imposed.” Id. at 668. Our inquiry, however, does not require a finding that “a sentence less than death was never imposed in a case with similar characteristics.” Id. at 665. This Court has repeatedly held that the pool of cases considered by this Court in its proportionality review includes “those first degree murder cases in which the State seeks the death penalty, a capital sen-
In reviewing the applicable pool of cases, we consider numerous factors regarding the offense: (1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the victim‘s age, physical condition, and psychological condition; (6) the absence or presence of premeditation; (7) the absence or presence of provocation; (8) the absence or presence of justification; and (9) the injury to and effect upon non-decedent victims. Bland, 958 S.W.2d at 667. In addition, we consider numerous factors about the defendant: (1) prior criminal record or activity; (2) age, race, and gender; (3) mental, emotional, and physical condition; (4) role in the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim‘s helplessness; and (8) potential for rehabilitation. Id.; see also Bane, 57 S.W.3d at 428-29.
In this case, Defendant kidnapped a man in Mississippi, killed another man there, and then began stealing vehicles with which to evade the police. When Defendant learned from his niece in Memphis that he had been tracked to that location, he carjacked the victim‘s car as she was stopped at a stop sign. He then violently forced her to switch places with him, keeping her in the car with him while assuring her that he would not hurt her. In order to prevent her from assisting in his apprehension, Defendant subsequently drove the victim to a remote location and killed her by stabbing her once in the back with such force that the knife blade remained embedded in her back. The victim was unarmed. While she was still moving, Defendant dragged her body about twenty yards and covered her with sheets of tin. Defendant then abandoned the victim to die.
The victim was a young woman attending graduate school in Memphis. She left behind a father, mother, younger brother, grandmothers, coworkers and friends. The victim had no prior knowledge of Defendant but was, rather, a completely random victim who tragically happened to be in the wrong place at the wrong time. There was absolutely no justification for her murder.
Defendant is a white male, fifty-four years old at the time he murdered the victim. He has a long history of violent crimes, including a prior killing. He denied his role in the victim‘s death for several days. Although he finally cooperated with the authorities, he did so in order to relieve his own torment. He has expressed some remorse for his actions. Defendant exhibits no potential for rehabilitation.
In State v. Thacker, 164 S.W.3d 208 (Tenn. 2005), the defendant tried to use a stolen credit card at a service station. The station owner would not return the card after it was rejected. The defendant knew he was “wanted in other states,” so he stabbed the station owner to death and “took off.” The jury convicted the defendant of first degree murder and sentenced him to death after finding two aggravating circumstances: the defendant committed the murder in order to avoid his prosecution, and he committed the murder in the course of committing a first degree murder, arson, rape, robbery, burglary, or theft. See
In State v. Blanton, 975 S.W.2d 269 (Tenn. 1998), the defendant had escaped from a Kentucky prison with seven other
In State v. Bates, 804 S.W.2d 868 (Tenn. 1991), the defendant had escaped from a Kentucky jail. He broke into a home and stole a shotgun. While on foot near an interstate in Tennessee, where he intended to steal a car, the defendant came upon the victim, a twenty-eight year old female mechanical engineer visiting the area during the course of her work. The victim was jogging. The defendant pulled the shotgun on her and walked her into some nearby woods. The defendant told the victim that he was not going to hurt her, that he needed her to drive him to Chattanooga because he was on the run. The defendant tied the victim to a tree, gagged her, and told her he was going to retrieve her car from her motel. The defendant then stepped behind the victim and shot her once in the back of the head, killing her. The defendant hid the victim‘s body under some branches and brush and then stole her car and some traveler‘s checks. After convicting the defendant of first degree murder, the jury sentenced the defendant to death, applying the
In State v. Thompson, 768 S.W.2d 239 (Tenn. 1989), the defendant and a juvenile female traveled together by bus from Georgia to Tennessee. They spent the night at an acquaintance‘s house. When the acquaintance discovered that the two were not married, she called and reported the juvenile as a runaway. The two left and loitered at a nearby Wal-Mart. There, the defendant abducted a woman at knife-point and forced her to drive them to a remote location. The defendant then stabbed the woman to death, leaving her body on the ground and stealing her car. The jury convicted the defendant of first degree murder and sentenced him to death, applying the
In State v. Carter, 714 S.W.2d 241 (Tenn. 1986), the defendant apprehended a man at a truck stop in order to steal the man‘s vehicle to use in a planned robbery. The defendant took the man to a cliff above a lake, shot and killed him, and rolled his body over the cliff. The defendant then absconded in the victim‘s vehicle. The jury convicted the defendant of first degree murder and sentenced him to death, applying the
Based upon our review of these and many other cases in which this Court has upheld a sentence of death following a conviction of first degree murder, we conclude that the sentence imposed in this case is neither excessive nor disproportionate to the penalty imposed in similar cases.
CONCLUSION
In accordance with
We have reviewed all of the issues raised by Defendant and conclude that they do not warrant relief. With respect to issues that were raised in this Court but not addressed in this opinion, we affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are incorporated herein and are attached as an appendix. Defendant‘s convictions of first degree premeditated murder, especially aggravated kidnapping, and theft over $1,000 but less than $10,000 are affirmed. The sentence of death for the murder, the sentence of sixty years for the especially aggravated kidnapping, and the sentence of twelve years for the theft are affirmed. The sentence of death shall be carried out as provided by law on the 2nd day of November, 2006, unless otherwise ordered by this Court or other proper authority. It appearing that Defendant Leonard J. Young is indigent, costs of this appeal are taxed to the State of Tennessee.
ADOLPHO A. BIRCH, JR., J., concurring in part and dissenting in part.
(Excerpts from the Decision of the Court of Criminal Appeals)
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
August 3, 2004 Session
STATE OF TENNESSEE v. LEONARD J. YOUNG
Direct Appeal from the Criminal Court for Shelby County Nos. 00-04017, 00-04018, 00-04019 Jon Kerry Blackwood, Judge
No. W2002-03012-CCA-R3-DD—Filed February 9, 2005
The appellant, Leonard J. Young, appeals as of right his conviction and sentence resulting from the 1999 murder of Hillary Johnson. On August 23, 2002, a Shelby County jury convicted the appellant of one count of premeditated first degree murder, one count of especially aggravated kidnapping, and one count of theft of property over $1,000.00. Following a separate sentencing hearing on August 24, 2002, the jury unanimously found the presence of three statutory aggravating circumstances: the appellant had previously been convicted of a violent felony offense, the murder was committed to avoid prosecution, and the murder was committed during the perpetration of a theft. See
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which, GARY R. WADE, P.J., and, THOMAS T. WOODALL, J., joined.
Robert Wilson Jones, Shelby County Public Defender; W. Mark Ward, Tony N. Brayton, and Garland Erguden, Assistant Public Defenders (on appeal); and William
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M. Gregory, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich and Jennifer Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
[Deleted: Guilt Phase Evidence]
[Deleted: Penalty Phase Evidence]
I. Suppression of Statement
Prior to trial, the appellant filed a motion to suppress his statements to Memphis police officers. As grounds for his motion, the appellant asserted that the statements were not given freely and voluntarily and were taken in violation of his right to counsel.
Facts Developed at the Suppression Hearing
At the suppression hearing on July 22, 2002, FBI Special Agent C.M. Sturgis testified that he interviewed the appellant on December 3, 1999, while the appellant was in custody in Oxford, Mississippi. The appellant was in custody on a warrant relating to the murder of William Bramlett, which murder occurred in Lafayette County, Mississippi. Agent Sturgis went to Oxford to question the appellant about his involvement with or knowledge of “a missing college student, Hillary Johnson, from the University of Memphis.”
At the time of the interview, Agent Sturgis knew that the victim‘s credit cards had been used out of the state, the victim had been listed as missing by the Memphis Police Department, and the victim‘s vehicle had been recovered in Tippah County, Mississippi. The appellant had been apprehended approximately four miles from where the victim‘s car was recovered. The appellant had previously admitted to Memphis police officers that “he had carjacked [the victim], that he had driven out Highway 64 somewhere near the county line, meaning Fayette County[, Tennessee]. He had dropped her off at the end of a road and had proceeded on and he had left her there.” Agent Sturgis hoped that additional information could be gleaned from the appellant.
When Agent Sturgis and Agent Rinehart arrived at the jail, they were met by Sheriff East and the attorney appointed to represent the appellant on the charges pending in Mississippi. The attorney agreed that “as long as [the agents] did not discuss [the charges pending in Mississippi] . . . that it would be okay to go in if [the appellant] was willing to speak with [the agents.]” At approximately 2:00 p.m., the agents were taken to a holding area outside the appellant‘s cell. Agent Sturgis testified that the area in which the appellant was confined had three individual cells. He was in the middle cell. All of the doors were unlocked and opened and there was a common area where you could sit that had a stainless steel picnic table. There was a television mounted on the wall, a pay phone, a shower, and rest room area.
According to Agent Sturgis, the appellant “seemed to be okay. He didn‘t seem like he was in any kind of health problems or miserable. . . .” The agents asked the appellant if he was willing to speak with them and advised him of his rights. The appellant agreed to speak with the agents, advising them that “he had just come from
Thereafter, the agents and the appellant watched television. The appellant periodically went from his cell to the picnic table where he would sit with the agents. They discussed the appellant‘s carpentry skills and the fact that he had recently lost a thumb. Eventually, Agent Sturgis pulled out an envelope containing childhood photographs of the victim. He removed the photographs from the envelope and placed them on the picnic table. The agents remarked that they would like to find the victim‘s body and asked the appellant if he would help them.
The three men continued their conversation, discussing the appellant‘s past relationships, his education, and his prior periods of confinement. The appellant had a lengthy criminal history, spanning forty years. The appellant never requested an attorney and never indicated that he was tired or wanted to leave. During the interview, the appellant was served dinner and permitted to smoke a cigarette, although smoking in the jail was prohibited.
Thereafter, the appellant returned to his cell. When he returned to the table, he tapped Agent Sturgis on the chest and said, “I‘m fixing to give you something.” He then proceeded to draw a map on the back of the envelope which had contained the photographs of the victim. The agents relayed the information to investigators, but the investigators were unable to find the area described by the appellant. Eventually, the appellant agreed to ride with the agents and direct them to the location of the body. They left the Oxford jail at approximately 10:30 p.m. During the drive, the appellant never indicated that he no longer wanted to help the officers locate the victim‘s body or that he wanted to return to the jail. Agent Sturgis testified that when they located the body at approximately 1:20 a.m., the appellant “broke down and was very upset about what all had happened.” Although unable to recall the murder, the appellant stated that “if she was laying there dead, that he guessed he did it.” He further admitted that he had encountered the victim in midtown Memphis.
The next day, Memphis law enforcement officials contacted Agent Sturgis and inquired whether the appellant would be willing to provide a recorded written statement. Agent Sturgis offered to return to Oxford to ask the appellant if he would provide another statement.
Memphis Police Sergeant Gerald Blum testified that he and his partner, Sergeant Cox, first interviewed the appellant on November 30, 1999. The officers traveled to the Lafayette County Jail in Oxford, Mississippi, to interview the appellant as a potential suspect in the victim‘s disappearance. At 1:35 p.m. that afternoon, the officers advised the appellant of his Miranda rights, which were read to him from the Memphis Police Department advice of rights form. The appellant informed Sergeant Blum that he understood his rights, but he could not read or write and, although he was willing to talk with the officers, he refused to sign anything. The appellant then told the officers that he was the person responsible for carjacking the victim. He stated that he drove the victim “out off of Highway 64 and let[] her out of the car.” After interviewing the appellant for more than an hour, Sergeant Blum “[t]ook a break.” During the break, Agent Sturgis advised Sergeant Blum that the appellant had been positively identified as a robbery suspect in Alabama. Based upon this information, Sergeant Blum de-
Sergeant Blum recalled that during the interview, the appellant did not appear to be under the influence of any drugs or alcohol. Sergeant Blum also stated that neither he nor anyone in his presence threatened, coerced, or made promises to the appellant. Moreover, the appellant never requested an attorney. However, the appellant informed the officers that he had completed only the third grade and could not read or write.
Sergeant Blum testified that on December 4, 1999, he returned to Oxford to question the appellant. Sergeant Blum was taken to an interview room where the appellant‘s statement was to be tape recorded. The appellant was again advised of his rights and, this time, the appellant signed the advice of rights form. According to Sergeant Blum, the appellant appeared to be in good condition, calm, cooperative, and not under the influence of any drugs or intoxicants. During the interview, the appellant did not indicate that he wanted to terminate the interview or that he wanted counsel. The interview lasted approximately one hour.
In his recorded statement, the appellant admitted that while “runnin’ from the law out of Mississippi,” he stole the Bronco and drove through Memphis to Houston, Texas, and back to Memphis. While in Memphis, he visited his niece, who informed him that the police were looking for him. Thereafter, the appellant parked the Bronco on the street near his niece‘s apartment in midtown and “started walkin‘.” As he walked across the street, a girl in a white, four-door car stopped and asked the appellant a question. The appellant jumped in the passenger side of the vehicle and told the girl that he “wasn‘t gonna hurt her, all [he] needed was a way to get out of Shelby County.” The appellant related that when he jumped into the car, he had two guns in his boots, one of which was the nine-millimeter pistol taken from the Bronco.
The appellant stated that after driving several blocks, he and the victim “switched places,” and he drove “east till we got to Airways. When we got to Airways, I knowed where I was at then. We went to Airways around to [Interstate] 240. I went around Memphis to [Interstate] 40 going to Nashville and hit [Highway] 64 while I was going out that way.” The appellant stated that he “dumped [the victim] off out there in Shelby County and . . . hid her body under some tin.”
In his statement, the appellant claimed that although he was responsible for the victim‘s death, he was unable to recall how she died. However, he related that while “in the woods,” the victim pulled a knife from behind the seat. He grabbed her arm and took the knife from her. The appellant stated, “I think she got cut.” The appellant then dragged the victim‘s body to a field and placed her under “some tin.” After hiding the victim‘s body, the appellant took her car and drove to Alabama, Florida, and back to Mississippi. He used the victim‘s credit cards to finance his trip.
The fifty-seven-year-old appellant testified at the suppression hearing that he had
The appellant conceded that he understood some of the rights that were read to him; however, he was unable to recall signing the advice of rights form. In fact, he maintained that he “ain‘t signed nothing.” The appellant claimed that during the interview, he advised the officers that he was finished speaking with them, but the interview continued. The appellant also claimed that when he requested an attorney, Sheriff East brought an attorney to the door and said, “[T]his is the attorney we are going to appoint you.” The appellant testified that “the man left and I ain‘t ever seen him since, not nary time since then.” Regarding his alleged cooperation, the appellant stated, “I tried to be as [cooperative as] I could . . . to keep from getting the hell beat out of me.” The appellant further averred that he never agreed to physically direct the officers to the location of the victim‘s body. Rather, he was chained and placed in a patrol car. According to the appellant, the trip to Tennessee and then to Mississippi was without his consent. On cross-examination, the appellant admitted that he had prior convictions of robbery with a deadly weapon, rape, crime against nature, grand larceny, kidnapping, habitual criminal, and manslaughter.
Based upon this proof, the trial court made the following findings of fact and conclusions of law:
[T]here is ample proof in my judgment that the FBI Agents Sturgis and Rinehart gave Mr. Young his rights. Even Mr. Young conceded in his testimony, his sworn testimony today that he was advised of his rights orally. He does not remember them actually reading from a document the rights, but he does remember having been advised of his rights and concedes that he understood most of them.
We didn‘t get into or the questioning didn‘t get into exactly what he claims he did not understand but he concedes that he understood most of them. That‘s from his testimony. Certainly from the testimony of the agents, he was fully advised of his rights and appeared to fully understand his rights prior to giving the oral statements that they took from him and prior to going with them up to Tennessee and the continuing statements that he provided in helping them locate the body. So I don‘t have any qualms about determining that he had been fully advised of his rights by the FBI agents prior to cooperating with them, giving them the oral statements that he gave and the statements that he gave in the process of helping to locate the body.
In fact, the whole history of the statements that he gave would indicate a pattern of cooperation, a pattern of initially giving self-serving statements that then evolved into more incriminating statements. He first told the police
even before the agents went down there that he had kidnapped the victim but had let her out at that intersection on Highway 64. And last time he saw her she was alive. That was his initial statement. So that would indicate a self-serving statement that would certainly indicate a statement freely and voluntarily given. And of course, when trying to view what Mr. Young is now claiming happened against what the officers claim happened, one has to evaluate the credibility of the various witnesses, and I find Mr. Young‘s credibility not to be very good given his prior record and the motive he would have today to shade things in his favor.
With regard to whether he was advised of his rights by Officer Blum and whether he freely and voluntarily gave the statement to the Memphis Police Department, again, he was advised of his rights first on November 30 at 1:35 p.m. That was the time that he was read his rights but refused to sign. That‘s consistent with all that was presented. And then again on December 4th, when he was read his rights and did sign. Then provided the lengthy taped statement. There are several indications at the beginning—the tape itself has not been introduced into evidence, but the statement indicates that in the heading it was stated that this taped statement is made on Saturday, December 4th, 1999, in the Fayette County jail, Fayette County, Mississippi. I assume that means LaFayette County, 1611 hours to Sergeant Blum and Sergeant Cox.
Farther down that first page, Question: Mr. Young, are you aware that we are recording this tape? Answer: Yes. Second page—well, after his rights are read to him again, they ask him: If you don‘t mind speaking up and saying yes instead of shaking your head. Answer: Yes. Which would again indicate that he knew it was being taped. And then later in the statement where Sergeant Blum indicates that he‘s turning the tape over to side B and asking Mr. Young to repeat his answer, would further indicate that he knew that the matter was being taped. I don‘t think it‘s any question. He knew it was being taped. He was freely and voluntarily giving the statement.
In fact some of his answers, some of his responses—all of his responses in here would indicate an individual who was cooperating and freely and voluntarily giving the statement. And as an example, of course I had noticed the portion . . . where he said he wanted to apologize for giving the police a hard time the other day. That would certainly indicate an individual who was not being coerced to say anything but was voluntarily cooperating and giving the statement.
And then on Page 17 where he was asked: Why did you decide to take them to that location? Answer: I wanted her to be with her family for Christmas and get this over with. It was eating me up. It was eating me alive.
To me that indicates a person that‘s voluntarily providing this information, has a real, an overwhelming feeling of guilt. It was eating me up. It was eating me alive. He wants to unburden himself and provide this information and does not indicate an individual who is being coerced or beaten or forced in anyway to give this statement.
I think everything about the testimony I‘ve heard and the documents that have been introduced suggest that all these statements and all these actions were provided freely and voluntarily af-
ter he had been fully advised of his rights on numerous occasions. And I‘ll deny the motion to suppress in every regard.
On appeal, the appellant contests the trial court‘s denial of his motion to suppress, arguing that his testimony reflects that his confession was coerced and that his request for counsel was never honored. The State responds that the trial court properly denied the appellant‘s motion to suppress.
A defendant‘s right against compelled self-incrimination is protected by both the United States and Tennessee Constitutions.
In Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966), the United States Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” The procedural safeguards must include warnings prior to any custodial questioning that an accused has the right to remain silent, that any statement he makes may be used against him, and that he has the right to an attorney.
State v. Blackstock, 19 S.W.3d 200, 207 (Tenn. 2000). However, these rights protected by Miranda may be waived by an accused if the waiver is made voluntarily, knowingly, and intelligently. Id. Whether a waiver has been made voluntarily, knowingly, and intelligently must be determined by the totality of the circumstances surrounding the interrogation. State v. Van Tran, 864 S.W.2d 465, 472-73 (Tenn. 1993); State v. Benton, 759 S.W.2d 427, 431-32 (Tenn. Crim. App. 1988).
The findings of fact made by the trial court at the hearing on a motion to suppress are binding upon this court unless the evidence contained in the record preponderates otherwise. State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001) (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The trial court, as the trier of fact, is able to assess the credibility of the witnesses, determine the weight and value to be afforded the evidence, and resolve any conflicts in the evidence. Odom, 928 S.W.2d at 23. On appeal, the prevailing party is afforded the strongest legitimate view of the evidence and all reasonable inferences drawn therefrom. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The trial court‘s application of the law to the facts, however, is subject to de novo review. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the burden of establishing that the evidence contained in the record preponderates against the findings of fact made by the trial court. State v. Buck, 670 S.W.2d 600, 610 (Tenn. 1984).
In the instant case, the trial court accredited the testimony of Memphis Police Sergeant Gerald Blum and the FBI agents and found that the appellant had not been coerced into giving his statements. The trial court noted that Sergeant Blum testified, and the appellant conceded, that he had advised the appellant of his rights prior to questioning on both November 30, 1999, and December 4, 1999. The trial court further noted that although the appellant refused to sign a waiver at the interview on November 30, 1999, he subsequently executed a written waiver on December 4, 1999, and provided a “lengthy taped statement.” The transcribed statement reflects that the appellant was advised of his rights, claimed that he under-
[Deleted: II. Failure of Trial Court to Declare Mistrial]
III. Venue
Next, the appellant contends that the evidence was insufficient to establish Shelby County as the proper venue for the prosecution of the victim‘s murder.1 Specifically, the appellant argues that the State failed to present evidence that the killing occurred in Shelby County, noting that the victim‘s body was discovered in a field in Fayette County. The appellant also contends that the trial court erred by failing to instruct the jury on the issue of venue. The State maintains that because the element of premeditation was committed in Memphis, Shelby County was the proper venue.
[Deleted: A. Sufficiency]
B. Instruction
Contrary to the appellant‘s assertion, the trial court provided the following instruction relative to venue:
It is therefore incumbent upon the state before you convict the defendant to establish, to your satisfaction beyond a reasonable doubt, that the crime charged in the indictment has been committed, that the same was committed within the county of Shelby and the state of Tennessee before the finding and returning of the indictment and that the defendant at the bar committed the crime in such a manner that would be make him guilty under the law heretofore defined and explained to you.
(Emphasis added). While this instruction is materially different from the pattern jury instruction found at
[Deleted: IV. Sufficiency of the Evidence]
V. Introduction of Photographs of the Victim
[Deleted: A. Childhood Photographs]
B. Autopsy Photograph
The appellant also challenges the admission of the autopsy photograph of the victim. At trial, the trial court admitted the photograph over defense counsel‘s objection, finding:
the photograph is not one of the—it‘s with her face down, although it contains bruising and what appears to the court to be bruising. It‘s not—she is clothed with the exception of the area above her—by her shoulders. It shows one stab wound. The court finds nothing really gruesome in the photograph.
Assuming that Dr. Smith is going to testify that this is the wound that caused the death, it would be illustrative of the wound and would be probative as to his expert opinion as to what caused her death.
On appeal, the appellant argues that the trial court should have excluded the photograph because it was gruesome and not probative of any contested issue in the case. The appellant further argues that any probative value was substantially outweighed by the danger of unfair prejudice. According to the appellant, the medical examiner‘s testimony and an x-ray depicting the knife blade embedded in the victim‘s chest were sufficient to illustrate the mortal wound. The State maintains that the photograph established premeditation, corroborated the testimony of the medical examiner, and proved the victim‘s death as well as the manner in which she died. The State also argues that because the photograph was not particularly gruesome or horrifying, the appellant was not unfairly prejudiced. We agree with the State.
Generally, “photographs of the corpse are admissible in murder prosecutions if they are relevant to the issues on trial, notwithstanding their gruesome and horrifying character.” Banks, 564 S.W.2d at 950-51. Moreover, photographs can be relevant if they aid the testimony of the medical examiner. See State v. Bush, 942 S.W.2d 489, 515 (Tenn. 1997) (holding that photographs were relevant to supplement the testimony of the medical examiner and investigative officers in showing the cause of death and the violence of the attack). However, the probative value of the evidence must be weighed against any unfair prejudice the defendant will suffer in admitting the evidence. Banks, 564 S.W.2d at 951.
We conclude that the admission of the photograph in the instant case was not error. The photograph in question depicted the victim‘s body face-down on a table at the morgue. The stab wound can be seen in the upper left portion of her back; thus, the photograph was relevant to supplement the testimony of the medical examiner in establishing the cause of death. See State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994). Although the photo-
[Deleted: VI. Admission of Victim Impact Evidence]
[Deleted: VII. Instruction as to (i)(2) Aggravator]
[Deleted: VIII. Sufficiency of (i)(6) Aggravating Circumstance]
IX. Constitutionality of Tennessee Death Penalty Scheme
Next, the appellant raises numerous challenges to the constitutionality of
A. Failure to Meaningfully Narrow the Class of Death Eligible Defendants
The appellant argues that the statutory aggravating circumstances set forth in
B. The Death Sentence Is Imposed Capriciously and Arbitrarily
Next, the appellant argues that the death sentence is imposed capriciously and arbitrarily because (1) unlimited discretion is vested in the prosecutor as to whether or not to seek the death penalty; (2) the death penalty is imposed in a discriminatory manner based upon race, geography, and gender; (3) the jury is required to unanimously agree to a life verdict in violation of McKoy v. North Carolina, 494 U.S. 433 (1990), and Mills v. Maryland, 486 U.S. 367 (1988); and (4) the failure to instruct the jury on the meaning and function of mitigating circumstances results in the reasonable likelihood that jurors believe they must unanimously agree as to the existence of mitigating circumstances. Our supreme court has rejected each of these arguments. See State v. Hines, 919 S.W.2d 573, 582 (Tenn. 1995); Brimmer, 876 S.W.2d at 87; State v. Cazes, 875 S.W.2d 253, 268 (Tenn. 1994); State v. Smith, 857 S.W.2d 1, 23 (Tenn. 1993);
C. The Appellate Review Process in Death Penalty Cases Is Constitutionally Inadequate
Finally, the appellant contends that the appellate review process in death penalty cases is constitutionally inadequate. Specifically, the appellant contends that the review process is not “meaningful” and that the statutorily mandated proportionality review violates due process. Both arguments have been rejected by our supreme court. See Vann, 976 S.W.2d at 118-19; Cazes, 875 S.W.2d at 270-71. Moreover, the supreme court has held that, “[w]hile important as an additional safeguard against arbitrary or capricious sentencing, comparative proportionality review is not constitutionally required.” State v. Bland, 958 S.W.2d 651, 663 (Tenn. 1997).
[Deleted: X. Review Pursuant to Tennessee Code Annotated Section 39-13-206(c)]
XI. Conclusion
Having fully reviewed the record and the applicable authority, we affirm the appellant‘s conviction of first degree murder. Additionally, in accordance with the mandate of
NORMA MCGEE OGLE, JUDGE
ADOLPHO A. BIRCH, JR., J., concurring in part and dissenting in part.
I concur in the conclusion of the majority that Young‘s convictions should be affirmed. As to the sentence of death, however, I respectfully dissent. I continue to adhere to my view that the comparative proportionality review protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and disproportionate imposition of the death penalty. See State v. Reid, 164 S.W.3d 286, 323-325 (Tenn. 2005) (Birch, J., concurring and dissenting), and cases cited therein. Accordingly, I respectfully dissent from that portion of the majority opinion affirming the imposition of the death penalty in this case.
Linda Yvonne BILYEU
v.
Glenn E. BILYEU.
Court of Appeals of Tennessee, Middle Section, at Nashville.
April 15, 2005 Session.
Nov. 28, 2005.
Permission to Appeal Denied by Supreme Court June 12, 2006.
Notes
The burden is upon the state to prove by a preponderance of the evidence that this offense was committed in [ ] County, Tennessee.
Proof by a preponderance of the evidence means that the greater weight of the evidence must be in support of the state‘s contention.
Venue of the offense lies in the county where the offense was commenced or consummated.
If you find that the state has failed to prove by a preponderance of the evidence that this offense was commenced or consummated in [ ] County, Tennessee, then you must return a verdict of not guilty.
[T]he jury shall consider, as previously indicated, any mitigating circumstances raised by the evidence which shall include but are not limited to the following: No. 1. Any testimony that he was cooperative in assisting to find the victim‘s body, thus allowing the family to give her a proper burial. No. 2. Any testimony he cried showing remorse when he arrived at law enforcement office in Fayette County to recover the victim‘s body. No. 3. Any testimony showing that he only has a third-grade education. No. 4. Any other mitigating factor which is raised by the evidence produced by either the prosecution or defense at either the guilt or sentencing hearing; that is you shall consider any aspect of the defendant‘s character or record or any aspect of the circumstances of the offense favorable to the defendant, which is supported by the evidence. No distinction shall be made between the mitigating circumstances listed and those otherwise raised by the evidence.